Kevin Brennan: I am very interested to hear what gets the hon. Gentleman excited after lunch, or indeed at any time of the day. To answer his point, I am sure he is anticipating what the Minister might say in response, but I shall rehearse the issues a little as I go through my remarks. It is important that we get these points on the record and air the concerns of those outside the Committee so that the Minister has an opportunity to respond. As I said, this is a probing amendment. At the end of our debate we will withdraw it, because we have sympathy with the point that the hon. Member for Enfield, Southgate makes. However, I want to ensure that the concerns expressed to us in representations are on the record and have been rehearsed.
Although a conviction might ultimately be avoided, no one wants to take a chance on the possibility of people being prosecuted, with all the reputational damage and cost that could be involved. Concerns have been expressed that the result could be to turn legitimate sales away from the UK, impacting upon the future success of the art market, which is a large industry in this country. It depends, crucially, on persuading sellers throughout the world to use the UK’s services. The British Art Market Federation states that its members
“are committed to conducting due diligence on artworks before they are sold. This may involve written evidence of provenance, consultation where necessary with external bodies, including databases of stolen objects and inquiries of the vendor.”
It goes on to argue:
“It is rare, however, that an artwork, particularly an older one, has an unbroken chain of provenance going back to the time it was created. It is also rare that there is comprehensive documentary evidence to support provenance, particularly the further back in time it goes.”
Often that evidence has been lost or perhaps never existed in the first place, as it may have been considered unnecessary at the time.
The retention of documents or records has assumed greater importance in recent years, as more and more claims have been made for the restitution of works of art that were looted during the second world war. Until relatively recently, owners rarely retained copies of export licences. As I understand it, the practice was that they were surrendered to customs authorities at the time  of export. Even the authorities themselves did not retain such records beyond a limited time. I am told that objects that were legitimately exported many years ago, even from the UK, routinely lack such documentary evidence that might prove the provenance.
The argument has been put to the Committee that the absence or paucity of documentary evidence does not necessarily indicate that an object is of illicit origin. Due diligence, in practice, can therefore usually come down to trying to make judgments on the legality of an object and therefore whether or not it can be legally sold. As I am sure the hon. Member for Kensington will remind us, the BAMF is not the only body with a behavioural code. The Antiquities Dealers’ Association also has a code of practice that is meant to ensure that dealers buy and sell in good faith. Against that backdrop, it argues that clause 17, as drafted, could present its members with some difficulties.
It was pointed out on Second Reading that other offences dealing with crimes of dishonesty—for example, offences under the Dealing in Cultural Objects (Offences) Act 2003—opt for the phrase “knowing or believing”. Some argue that that phrase would be superior to the one used in the Bill, as there is a difference between having knowledge and acting in spite of it, and not having sought out that knowledge in the first place. Current principles indicate that under current law the former would be a criminal offence and the latter, although it would be frowned upon, probably would not meet the bar of being a criminal offence.
The BAMF argues that changing the phrasing of mens rea in the Bill to include the phrase “having reason to suspect” muddles the legal principle and could create ambiguity, and therefore the opposite outcome to the one we all want. It suggests that those who have acted criminally could be emboldened to exploit the muddled language to avoid conviction, while legitimate operators would be put off buying and selling by the potential of a criminal conviction. The issue has been raised many times during the passage of the Bill so this is a probing amendment to understand fully why the Government have not responded and changed the wording.
From memory, the Secretary of State said on Second Reading—I will check the record when I sit down—that she would go away and consult the Minister and others to see whether the Government should take on board the concerns expressed on the Floor of the House and in the other place and then offer an amendment. I would be grateful if the Minister, when she responds, could indicate whether the Secretary of State has fulfilled that commitment and what the outcome of those discussions was.

David Burrowes: It is a pleasure to take part in the debate on clause 17, which drew a lot of attention from both Government and Opposition Members on Second Reading, as well as in the other place and among the all-party group on the protection of cultural heritage. I welcome the involvement and contributions of the Antiquities Dealers’ Association, the British Art Market Federation and others, which have drawn their expertise to the Committee’s attention in their submissions. I very much respect their concerns, amplified by my hon. Friend the Member for Kensington, about mens rea, which, as I said earlier, gets me interested.
Were one to have a blank canvas—I suppose this is an appropriate forum in which to discuss canvases—there would be an even greater weight to the argument. As a criminal lawyer, when I look across the family of dishonesty-type offences, I will plainly be looking at the state of mind. In the normal course of dishonesty-type cases, one would look to ensure that there is a subjective test that is consistent not only in terms of enabling a prosecution, but with an eye to how the judge would distinguish between or collate the subjective and objective elements in the summing up to the jury. I appreciate that everyone wants to ensure that prosecutions under the Bill are successful.
Having said all that, although I accept that there is genuine concern about the potential effect on the market, I say, respectfully, that it has been somewhat overstated. Given that we do not have a blank canvas, the idea that the implementation of the Bill will cause such repercussions on the market has been overstated. Elements of the canvas are relevant and show things working, albeit in a slightly different form. The Syria sanctions order and the UN’s Iraq sanctions order are relevant and give some texture to enable us to recognise that a precedent has been followed in relation to this particular element of the subjective and objective tests.
One can also look further afield. We can have our own views, but to give a sense of balance, if one looks at the recent written submissions to the Committee, some significant views have been brought to our attention. Mr Michael Meyer is head of international law at the British Red Cross, a respected body of international import when one is dealing with issues of international humanitarian law. In his written evidence, he makes the point that the British Red Cross is a neutral body that is keen to maintain its neutrality—the commonality of that view was shown in both this House and the other place.
In paragraph 5 of his submission, he outlines some concerns that have also been raised in this debate. He then says:
“However, it appears that, in practice, the clause should place no greater burden on dealers than already exists to conduct appropriate due diligence. In other words, the threshold of ‘reason to suspect’ is not so low as to have an adverse impact on the legitimate market, while at the same time acting as a necessary and suitable deterrent for those who may be less scrupulous. The wording is somewhat similar to that used in the existing Iraq and Syria sanctions orders. There is also very similar wording found in section 17 of New Zealand’s Cultural Property (Protection in Armed Conflict) Act 2012.”
Interestingly, the latter Act also dealt with the ratification of the Hague convention.
The written evidence from Peter Stone, the UNESCO chair in cultural property protection and peace, to whom I have referred previously, asks the Committee not to amend the Bill. He draws attention to clause 17  and prays in aid the note submitted by Professor Roger O’Keefe of University College London law school, who was involved in scrutinising the draft Bill before the Culture, Media and Sport Committee. He, too, very much supports the current wording and suggests that appropriate due diligence and legal advice can deal with concerns.
The Council for British Archaeology has already recommended to the Committee that the Bill’s drafting is adequate, as has the UK National Committee of the Blue Shield. I say that to show that there is a balance of opinion. One way of properly dealing with the suggestion that the amendments will not be pressed is by recognising that this issue is important. I recognise and value the pre-eminence of the market here, not least in London. We need to ensure that there is proper confidence, assurance and guidance, and appropriate clarity and transparency, to ensure that any chill factor or fear of a knock on the door, seizure of any artefacts and so on, will not be there. We need real clarity, so that there will not be the cost of having to get expensive lawyers on the case—I know about those. Perhaps the Minister can give some assurance on that, and recognise that there is a balance of opinion that wants to move forward and keep the drafting as it is, given that we do not have that blank canvas in place.

Kevin Brennan: I thank the Minister for her response. I confirm that amendment 7 is a probing amendment. She quite rightly picked up on the summing up that my hon. Friend the Member for Sheffield, Heeley, made on Second Reading. This is an important issue and the debate has been useful, and a probing amendment is a useful vehicle for a debate. The Minister just mentioned the hon. Member for Huntingdon, and it is useful to have on record her commitment on the guidance.

Of course, an object’s entire paper trail cannot be retroactively reconstructed, but we can put in place robust measures to ensure that records are reliable from this point. We should aim for the transparency that we demand in other industries because, as in every industry, there are activities and actions of individuals within it that have to be deterred and prevented. A lot of investigative work was done by both Channel 4’s “Dispatches” and The Guardian into some of those activities. I understand that the Metropolitan police has stated that the market has improved recently, largely due to the due diligence practices that we have discussed. Building on that, it is not unreasonable to expect, as a minimum, that the identity of an item’s owner and buyer should be made known, as referred to in subsection (1) of the new clause.
Subsection (2) would have the Secretary of State bring forward regulations regarding specific requirements for transparency. I think that a similar amendment was proposed in the House of Lords, to which the Government objected because it would have put too much detail in  the Bill. That is always an objection that Governments, often reasonably, but at other times unreasonably, bring forward. In this version, we have allowed the Secretary of State the opportunity to bring forward those regulations on what would be specifically required for transparency. That is so that there can be appropriate consultation with the market, and an opportunity for others to make representations on the exact detail of what that transparency would consist of. It is not possible to trace the entire provenance of every item, but if the Secretary of State were to ask, or require, that an effort be made to identify owners since 1970—the date of the UNESCO convention—that would go a long way towards helping to improve the market.
I have outlined that there are self-regulatory codes of practice in place in the art market. I am happy to praise the industry for putting those in place and for the improvements in recent years. However, the Government have acknowledged that that is partly due to the effect the 2003 Act had in incentivising due diligence, so legislation can have an impact on improving due diligence. With this new clause, we are suggesting that we should not be complacent. The Bill is an opportunity to incentivise further transparency and deter further fraudulent behaviour. Does the Minister agree with that? We are approaching the same issue of criminality from a different angle, and our aim is to establish effective enforcement and deterrents. I look forward to hearing the Minister’s response on new clause 3.

Kevin Brennan: The Minister says “Tory Government” from a sedentary position. I hope that she is not saying that they are not paying the people in the monuments squad for their work. We in the Opposition certainly believe in the rate for the job when somebody is working. I am sure that she will clarify that in her response.
The second body mentioned in our new clause is the Border Force, which we all know has been subject to large budget cuts—more than £300 million in the run-up to 2015 by the coalition Government—and simultaneously came under the increasing pressure of public expectation in relation to preventing illegal immigration. As we see with every public service, expectations are high, but it is difficult for those expectations always to be met if funding is continuously cut. That said, I understand from the Government’s assurances in the Lords that any new costs incurred by the Border Force in enforcing the Bill will not be significant, and that its new responsibilities will not differ greatly from its current day-to-day business.
The Government have stated that the Border Force already carries out the functions required by the Bill in relation to the 2003 Iraq and Syria sanctions. Will the Minister assure us that that is indeed the case? Furthermore, while the work derived from the Bill may not differ significantly from the current everyday business, is there likely to be an increase in workload in relation to the Bill? If so, what provisions are the Government making?
It has been stated that, in regard to a code of practice, resources on cultural goods are available on the Border Force intranet site, and I understand that the Border Force will be expected to seize goods when instructed to do so, rather than be expected to discover the goods’ illegally-exported status itself. As I mentioned, many duties under the Bill are already performed by the Border Force. Does the Minister think that the passage of the Bill will require further robust training in the handling of cultural goods?
Baroness Neville-Rolfe stated:
“Enforcement practices relating to combating smuggling are often the same regardless of the type of goods.”—[Official Report, House of Lords, 28 June 2016; Vol. 773, c. 1529.]
While that may be true, there are also unique sensitivities when dealing with often antiquated and fragile items of cultural property, which, as all parties have agreed, are of immeasurable value. This question is particularly relevant in light of comments made by the former director of the unit within the Metropolitan police, Dick Ellis, who said:
“These pieces are moving through customs, they’re moving through our ports all the time. And yet not a single item is seized in this country… these sorts of objects when they’re looted in Syria, when they’re looted in Iraq, are helping to fund terrorism, why on earth aren’t we doing more to stop them coming on to the market?”
That is not just a question for the Border Force, because, as the new clause specifies, institutions need to communicate and co-operate with each other to protect cultural property. The Government have clarified the fact that the Border Force would not be expected to identify illegal goods, so the matter of how those separate institutions, with their separate but related functions, will be joined up is therefore crucial.
Does the Minister feel that a dedicated unit within the Border Force, with a close communication link to the equivalent unit within the Metropolitan police, is necessary properly to enforce the Bill and, crucially, to provide a robust and credible deterrent with respect to those who would attempt to bring illegally exported cultural property into the UK?
I turn now to the arts and antiquities unit of the Metropolitan police, which is composed—

Tracey Crouch: I am sure that if it says that in the impact assessment, that is indeed the correct interpretation, but I am happy to provide further information on that on Report if that helps.
I will go back to the points on policing that the hon. Gentleman raised with regard to new clause 1. He will, of course, be aware that we have created elected police and crime commissioners to give strategic direction and to hold police forces to account for operational policing decisions, including how resources are directed between different units and functions. In London, the Mayor of London has that responsibility. We do not think it is necessary or desirable for the Government to cut across that democratic approach to accountability in policing by requiring the Secretary of State to take a specific interest in the funding of individual police units or functions. Moreover, it does not seem to me to be particularly helpful to isolate the implementation and enforcement of the Bill from the excellent wider work being done by so many bodies to protect cultural property.
That also applies to the provision in subsection (3) of the new clause, relating to communication and co-operation between public bodies. As with the costs, I do not think  it is helpful to treat that separately from the regular contacts between public bodies on wider cultural protection work. Public bodies are required to report on their work costs and spending, and hon. Members are always extremely assiduous in holding them to account for their use of public money and the way in which they implement and enforce legislation. I am sure that the Bill will be no exception. A separate statutory obligation on the Government to report to Parliament on the costs associated with the Bill therefore seem unnecessary, which is why we oppose new clause 1.
New clause 4 deals with matters of an administrative nature that are not specifically covered by the Bill. We are already considering the administrative measures that will be needed to implement the convention and its protocols once the Bill is passed into law. We will reflect on issues raised during the passage of the Bill as part of that process. The hon. Gentleman mentioned specific items. We do not think it is appropriate to confirm whether a specific cultural object will be afforded protection.
We want to ensure that the views of stakeholders are heard. Next month we are holding a round-table discussion with key stakeholders to discuss the categories of cultural property that will be afforded general protection under the convention, and what additional safeguarding measures might be required. The hon. Gentleman might be interested to know that our provisional thinking is that general protection status would extend to buildings, historical gardens or parks of grade I or category A status; cultural world heritage sites; and nationally important collections in museums, galleries and universities, as well as in the national record offices and our five legal deposit libraries. However, we are still determining our categories, and discussions with key stakeholders are ongoing.

Tracey Crouch: I will certainly take that away, discuss it with officials and report back to my hon. Friend.
In practice, a range of safeguarding measures will already be in place for most cultural property under general protection in the UK. Existing listing, designation and accreditation schemes generally require certain measures to be in place to protect cultural property from, for example, fire, flood and other emergencies and natural disasters. Article 5 of the second protocol expands on the meaning of “safeguarding cultural property” by giving some examples of the kind of preparatory measures that should be taken in peacetime. Those include the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property. The first three measures all represent common-sense precautions and are likely to be covered by existing contingency planning for an emergency or natural disaster.
Once we have decided which cultural property will receive general protection, we will be in a position to decide which are the most appropriate competent authorities for safeguarding that cultural property in the event of  armed conflict. Our current thinking is that the most appropriate body to undertake the peacetime safeguarding measures is the existing owner, guardian or trustees of a cultural property.
It is also important to note that article 26 of the convention requires state parties to report at least every four years to the director general of UNESCO on their implementation of the convention. In practice, UNESCO asks state parties to provide information on the measures they have undertaken in relation to relevant peacetime safeguarding provisions as part of the periodic reporting, and those reports are published on the UNESCO website. The UK Government will therefore already be reporting on the safeguarding of cultural property as a matter of good practice, in line with the reporting obligation in article 26. A separate statutory obligation to report to Parliament on matters that are administrative and not part of the Bill appears to be unnecessary.
On new clause 5, I know that many hon. Members are interested in the cultural protection fund and wish to be kept informed about it. However, the cultural protection fund is not part of the Bill, and the new clause therefore introduces a new subject that is beyond the scope of the Bill. It is also unnecessary. The British Council, which is responsible for administering the cultural protection fund, will publish an annual report on the work of the fund. That report will be publicly available. If the fund supports projects with direct relevance to the Bill and to the convention and its protocols, we will work with the British Council to ensure that the annual report includes appropriate mention of them. Our priority is to work with the British Council on the first round of bids, but we cannot make future funding commitments at this stage. I hope the hon. Member for Cardiff West is reassured that information about the cultural protection fund will be made available.
With regard to a point made by my hon. Friend the Member for Enfield, Southgate, parties to the second protocol are not obliged to contribute to the fund for the protection of cultural property in the event of armed conflict, but once the UK has ratified the convention and its protocols, we will begin to consider our role as an active state party. It would not be appropriate—certainly not on the face of the Bill—for the Government to commit to any funding prior to becoming a party to the convention or its protocols. However, I assure him, not just as a consequence of my own competitiveness but because it is morally right to do so, that we will continue to play, or wish to continue to play a leading role in the world on this issue. Those are the reasons why I oppose new clauses 1, 3 and 5, but I hope the hon. Member for Cardiff West is reassured by my comments.

Kevin Brennan: I beg to move, That the clause be read a Second time.
Having made remarkable progress during the day, we have reached our final debate on the Bill and amendments to it. New clause 2, which stands in my name and that of my hon. Friend the Member for Tooting, calls on the Government to set out what its priorities will be in the event that a third protocol to the convention becomes the subject of international discussion. Inevitably, this Bill does look back as we are ratifying The Hague convention of 1954, but as the first two protocols show there certainly is an appetite to ensure that the convention remains up to date, relevant and effective.
One could make many suggestions regarding what a third protocol could specify. During our discussions, two specific questions have been raised repeatedly and would benefit from being marked as UK priorities in the report proposed in the new clause. They are, first, the application of the convention to cultural property in digital form, and secondly, the applicability of the convention to conflicts such as the one in Syria. These are both areas where the age of the convention has started to show and which could be updated in a third protocol.
On Second Reading, I raised a question that many across the House have also asked about how the ratification of the convention would apply to conflicts such as those in Syria and Iraq. The Minister kindly circulated a note—actually, I think it was the Secretary of State rather than the Minister—using Syria as a case study and outlining how the convention and its protocols relate to conflicts not of an international character. I appreciate that, as it helped to clarify a few issues. I welcome the assurance that a UK national involved in the destruction of cultural property in a country that has signed the convention would be criminally liable. That is very important, not least in the light of recent  developments. To be absolutely clear—I think we rehearsed this somewhat earlier on—I believe the Secretary of State’s note means the convention does apply during a civil war. The Minister also said earlier that it would apply to both parties in a civil war, even when one of them is not a recognised state. Clarity on that is important.
Ideally, we would need a ministerial note or clarification to explain whether or not and to what extent the convention applies to a certain type of conflict. A third protocol would be an opportunity to aim for a more standardised safeguarding strategy for cultural property worldwide where it is involved in any kind of armed conflict. I think this idea has some cross-party support. The hon. Member for Enfield, Southgate asked in Hansard in column 698—I am trying to remember whether it was on Second Reading or whether it was a question—